The second of six essays written by Judge Abel P. Upshur.
A series of Essays, addressed to Thomas Ritchie, by a distinguished citizen of Virginia, under the signature of “Locke,” in February, 1833.TO THOMAS RITCHIE, Esq.
In the letter which I addressed to you on the 2nd inst., I propounded to you certain interrogatories, touching the great principles involved in the present measures of the Federal Government. I could not wait for your reply, even if there were better reasons than any which I can now discern, for expecting a reply at all. I do not expect it, and yet I venture to hope for it. You owe it to your own character, to your numerous patrons, and to the great cause in which you have professed to be a zealous labourer, to be no longer silent or mysterious, upon these important topics. Come out, I pray you, in a manner at once so distinct and unequivocal, as to leave no pretence, either to friend or foe, for accusing you of duplicity or timidity.
I live in a very retired corner of the country, sir, and seldom get the news until it is news no longer, in other places. Hence, at the date of my last letter, I had only heard of the President‘s late message to Congress. That most weak and sophistical, yet most dangerous document, was never read by me, until this morning. It has sunk into a still deeper depth of depression, the few lingering hopes which I was permitted to cherish, that the constitution and public liberty, would survive the administration of Andrew Jackson. I shall have something to say to you upon that subject hereafter. I proceed now to redeem my promise, in proving, or at least endeavouring to prove, that the Virginia resolutions of 1798, cannot be carried out in any other manner than by nullification. In doing this, I shall go back no farther than to the resolutions themselves. I shall give to the language employed, no other construction than that which ever man of plain common sense will be compelled to give it. This is the only fair course of proceeding, for the resolutions were intended for the great body of the people, and must have been designed to be comprehensible by the meanest capacity. I will not do the Legislature the injustice of supposing, that they intended to wrap up in mystery which none but the statesman or the man of learning could penetrate, principles which they deemed essential to the preservation of constitutional liberty. So much of these resolutions as relates to the present subject, is in the following words:—
“That this Assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government as resulting from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact, as no farther valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the States who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.” “That the good people of this Commonwealth, having ever felt, and continuing to feel, the most sincere affection for their brethren of the other States; the truest anxiety for establishing and perpetuating the union of all; and the most scrupulous fidelity to that constitution which is the pledge of natural friendship, and the instrument of mutual happiness; the General Assembly doth solemnly appeal to the like dispositions in the other States, in confidence that they will concur with this Commonwealth in declaring, as it does hereby declare, that the acts aforesaid, [the alien and sedition laws,] are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this State, in maintaining unimpaired, the authorities, rights and liberties, reserved to the States respectively, or to the people.”
In these resolutions, the following principles are distinctly affirmed:
1. That the Constitution of the United States is a Compact between the States, as such.
2. That the Government established by that Compact, possesses no power whatever, except what “the plain sense and intention” of that Compact gives to it.
3. That every act done by that Government, not plainly within the limits of its powers, is void.
4. That each State has a right to say whether an act done by that Government, is plainly within the limits of its powers or not.
5. That the States are not bound to submit to, but may resist, any act of that Government, which it shall so decide to be beyond the limits of its powers.
All this is plain enough, and is, as I understand, fully admitted by yourself. The only difficulty is, to discover in what mode the Resolutions contemplated that resistance should be applied. On this subject, I have to remark, in limine, that the Resolutions contemplate that “the necessary and proper measures will be taken by each State” for itself. No uniform mode of resisting the encroachments of the Federal Government is pointed out or suggested. Having affirmed the right, each State is left to its own mode of asserting it in practice. Taking the terms of the Resolutions in their utmost latitude, they authorize any means of resistance whatever. Such, however, is clearly not their meaning. A very slight analysis will force upon us the conviction that no mode of resistance is contemplated, except such as will preserve the Union unimpaired, while it will effectually put down the usurped power. This is shown:—
1. By the profession of “sincere affection” for the people of the other States; of “anxiety for establishing and perpetuating the union of all;” and of “the most scrupulous fidelity to the Constitution.” It is upon the strength of these feelings, and with a view to these objects, that the co-operation of the other States is invited.
2. The interposition of the States must be in such mode as to “arrest the progress of the evil.”
3. It must at the same time be such as to “maintain within their respective limits, the authorities, rights and liberties appertaining to them.”
4. It is to be remarked, that we have here a distinct declaration that there is within the Constitution of the United States, some principle, by which the encroachments and usurpations of the Federal Government may be resisted. I say, within the Constitution, and not extra-constitutional and revolutionary.
And now, Sir, will you be good enough to tell me in what manner that principle is to be applied? Permit me to examine all the modes of resistance which occur to my own mind, and to see which of them is within the principles thus asserted.
1. Petition, remonstrance, protest.—It cannot, I think, be seriously asserted, that these are any means of resistance at all. It is such a resistance as your slave may make, when you chastise him for an imputed fault. If all right of farther resistance be disclaimed, this is an implied admission that the party to whom the appeal is addressed, may, if he chooses, persevere in the wrong. In point of fact, however, remonstrance and protest are founded in the idea that there is such right of farther resistance. Petition is a simple appeal for mercy or forbearance; protest and remonstrance, affirm a right, and threaten the enforcement of it. But they do not in themselves enforce it, and therefore are not resistance.
2. An appeal to arms.—This is utterly against all notions of constitutional remedy. Our Government is founded in free choice, and is supported by public opinion alone. A resort to arms, therefore, would at once change the whole genius of the Constitution. A case might certainly arise, in which a State might rightfully resort to arms for the purpose of putting down or resisting the usurpations of the Federal Government. Suppose, for instance, that the President should send a regiment of his standing army, to turn our Legislature out of doors, and pull down the capitol, I presume that Governor Floyd would be clearly right in calling upon the militia to put every soldier of them to the sword, if the civil authority should prove unable to “arrest the progress of the evil.” At all events, the Legislature might authorize him to do so. This, however, is an extreme case, and such as could not have been anticipated; for the Government could not exist a day, with an administration capable of such an outrage. An actual appeal to arms, therefore, is not to be thought of, as among the proposed modes of resistance.
3. A repeal of the unconstitutional law by Congress. This, I perceive, is one of the President’s modes, but unfortunately, he is not very apt to discern the principles which his measures involve. This would, indeed, be a complete remedy for the evil, and an ample redress of the wrong.—You know, however, sir, that although you may “call spirits from the vasty deep,” it is not certain that they will “come when you do call them.” It is not likely that the usurper will either acknowledge his usurpation, or lay down his usurped power. You must remember, too, that the usurper in the present case, is a majority of the people, usurping upon the rights of the minority, and the history of the tariff laws, ought to convince you how unapt such usurpers are to give way. This remedy, therefore, would be of little value in practice. Besides, it is in principle, a simple appeal to the wrong doer, and is therefore, no more a mode of resistance, than the right of petition. Every thing is left at last, to the will and discretion of the usurping power.
4. An amendment of the Constitution. I certainly should not have mentioned this as a means of resistance, if it had not been mentioned by the President, as one of the modes in which the aggrieved States, or people, might seek redress. No man, but one of his peculiar intellect, would ever think of an amendment of the Constitution, as a means of resisting a breach of that instrument. It is not the object to amend the Constitution, but to preserve it, unimpaired as it is. I hope that the President’s future labours, in the study of the Constitution, may show him this distinction.
5. Secession, or a withdrawal from the Union by the aggrieved State. This, sir, is your favourite mode, and, as far as I can perceive, your only mode, of resisting the usurpations of the Federal Government. The President, however, in the plenitude of his merciful consideration of State Rights, does not even allow them this humble refuge from oppression. Let us now see how you will carry out this mode of resistance, consistently with the resolutions of 1798.
In the first place, a State which withdraws from the Union, breaks the Union. This is true ex vi termini, and therefore, need not be proved. But I have already shown that the resolutions of 1798, proceed upon the idea, that the Union is to be preserved, and indeed, that is the main object of resistance, as therein contemplated. In this respect, therefore, secession is not a means of resistance: within those resolutions.
In the second place, the resistance therein contemplated, must be such as will “arrest the progress of the evil.” Will you be so obliging as to tell me, sir, how a usurped power can be resisted, by giving way to it. In one way, indeed, the evil may be arrested by secession; the usurped power may be rendered nugatory, by withdrawing from its reach, all the subjects upon which it can exercise itself. I can scarcely imagine, however, that this tame and submissive idea, was entertained by the statesmen of 1798. It appears to my humble understanding, that secession, so far from being a form of resistance to usurped power, is the precise reverse; it is neither more nor less than a running away from the oppressor. And so far from “arresting the progress of the evil,” it encourages and invites the evil, by removing all restraint from the wrong-doer. In this view, therefore, it is not within the resolutions of 1798.
In the third place, the interposition of the States, must be such as to maintain within their respective limits, the authorities, rights and liberties, appertaining to them.” Now, what are these “authorities, rights and liberties?” To you, sir, I need not say, that as sovereign and independent States, they are entitled to all the authorities, rights and liberties, which at any time, belonged to them as such, except such part thereof, as they plainly surrendered when they ratified the Constitution. These they may, it is true, enjoy in a state of separation. But they are also entitled to all the authorities, rights and liberties, which the other States guarantied to them by the terms of the Union. Among these are to be numbered their just weight in the measures of the common government; a share in the common property of the whole; protection by the common power; a Republican Government assured by that power, and all and every benefit and advantage which they could enjoy as members of the Union. It was in this character alone, that their co-operation was invoked in the resolution of 1798. And now, sir, be good enough to say, how the authorities, rights and liberties, which belong to the States, as members of the Union, can be “maintained,” by their going out of the Union. If you cannot, you must feel yourself also, secession is not within the resolutions of 1798. I know you will tell me that these resolutions have been much misunderstood. You have already said so, and much subtlety in reasoning, and refinement in language, have been resorted to by your correspondents to prove it. It is for this very reason, that I have taken such parts of the resolution only, as no man can misunderstand, and such as do not admit of but one construction. You may refine until doomsday, and you will not change the plain meaning and object of the plain language employed.
I have thus examined every mode of “arresting the progress of the evil, and maintaining within the respective limits of the States, the authorities, rights and liberties which appertain to them,” which occur to my mind, except nullification. It appears, I think, clearly enough, that none of these will answer the purpose. If there by any other mode, you will confer a great benefit upon the country, by pointing it out. I promise to prove to you that Nullification is this other mode, but I must make that the business of another letter. I have already occupied quite as much space in the Whig as I am fairly entitled to, and would not willingly trespass too far upon the indulgence of its Editors. Besides, sir, although you may not consider these letters worthy of being answered, I am very desirous that they should be read, and, therefore, I will make them so short as not to deter any one from perusing them, and not to fatigue any one over much, who shall venture upon that undertaking.